Dutch Court Orders Pirate Bay To Delete Torrents

from the yet-again dept

Fri, Oct 23rd 2009 2:31am — Mike Masnick

Earlier this year, a Dutch court issued a default judgment against The Pirate Bay, ordering it to delete certain torrents and block Dutch web surfers from reaching the site. The Pirate Bay's founders protested the ruling, noting that they had not been properly informed of the case in the first place, and that other items in the lawsuit were highly questionable -- including what appeared to be falsified documents submitted by BREIN, the Dutch anti-piracy agency.

The court has now annulled the original default judgment, but the new ruling is basically the same thing. The founders were told to delete torrents and block Dutch surfers from at least part of the site. The court also rejected the claim that the founders do not still own the site, saying they presented no evidence that the site had actually been sold to another entity, or any evidence of who now owned the site. While I still think it's questionable to force the site to block results of what is really a search engine, there is a point about who owns the site. I recognize why The Pirate Bay has done what it's done, but it almost feels like they're trying to be too cute about the ownership issue.

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Filed Under: blocking, copyright, netherlands, torrents
Companies: brein, the pirate bay

32 Comments

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trench0r (profile), 23 Oct 2009 @ 2:55am

I kind of have to wonder how a seperate country can force a website to block ITSELF from their country, I mean, didn't the US simply force ISP's to block websites it deemed wholly illegal? what happens if they don't comply? will the be extradited? is this really a criminal offense or a civil one?
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Tor (profile), 23 Oct 2009 @ 3:23am

Legal responsability
The decision also contains another interesting thing. The TPB guys argued that they are no longer responsible for the site, but the judge argued that unless they can show who is they still are. It's likely that a Swedish judge would argue in the same way if more recent allegations against TPB were brought up in Sweden. So hiding behind an off-shore company doesn't help unless one can prove who took over ownership.

I wonder if this will prompt the copyright industry to try to raise some new charges against TPB in Sweden just to force them to reveal this information.
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Confused, 23 Oct 2009 @ 5:08am

How?
"Dutch Court Orders Pirate Bay To Delete Torrents"

Exactly, how is this accomplished? How would TPB delete torrents? I was unaware they had this capability.

Possibly what they meant was delete the links to torrent sites? This would make much more sense.
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trench0r (profile), 23 Oct 2009 @ 5:19am

Re: How?
Actually TPB hosts .torrent files, as far as I know, and doesn't simply re-link to other torrent sites (you may be thinking of another site?). Though the issue is a bit confusing since .torrent files are essentially links (or maps, or plans, I guess?) to content which is often legitimate.

Perhaps someone should accuse BREIN of owning TPB and hold them liable until they can produce official documents showing the real owner?
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TriZz (profile), 23 Oct 2009 @ 5:33am

IANAL - But doesn't...
...doesn't putting the burden of truth on TPB guys that they ARE NOT the owners actually imply that they are guilty of ownership until proven innocent?

Or is this just semantics? Or should I actually become a lawyer?
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Michial Thompson, 23 Oct 2009 @ 6:11am

Not really any different that would happen here in the US
Forcing the founders to prove who they sold TPB to or take responsibility is perfectly legal, in fact it happens here in the US all the time.

The founders of TPB are/were the legitimate owners at one time, they created the site, they filled out all the paperwork, and by doing so they accepted responsibility.

If they cannot prove who they sold it to, then they are still responsibile for the site. If they aren't held responsible there is nothing to prevent everyone in the country from incorporating a company name, then performing all sorts of fraud or illegal acts under the umbrella of the corporation and getting away with it by simply claiming to have sold it to an unnamed party.

As for this being civil/criminal, the original case is probably civil, but when they refused to comply with court orders it become criminal. Basically by not complying with the court order they are in contempt of court, and nothing else. BUT the judge does have the right to order them into jail until they do comply which my guess is that 30 days in a cell with bubba and they will be crying to get everyone off their ass.
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Haywood, 23 Oct 2009 @ 6:25am

Re: IANAL - But doesn't...
I think it is like when a car is ticketed by the license plate; the registered owner is responsible unless they can produce an operator.
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Mick, 23 Oct 2009 @ 6:38am

Burden of proof
It's seems completely absurd to me to argue similar to: "Unless you can prove you are NOT the owner of this knife you will be charged with murder."... Makes it kind of easy to accuse anyone of anything as long as they can't prove non-ownership of evidence material.

Weirdos.
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Anonymous Coward, 23 Oct 2009 @ 7:05am

Re: Burden of proof
It only works if they know that they bought the knife, etc.

You are missing steps here.
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Liquid, 23 Oct 2009 @ 7:08am

Re: How?
I know right. Would be smart of them to go "Ok we'll delete those torrents... If we actually hosted the files on our own servers". Then explain to the non-technical judge that they don't host the actual files out of the server it's self, but the links that are used by torrent programs to get to the torrents...

It's really quite amazing to see how far behind technologically people are from the "techies". Granted it's all knowledge of how things work, but still makes you go "hmmm it's not that hard to understand".
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Anonymous Coward, 23 Oct 2009 @ 7:20am

If they have nothing to hide why are they trying to hide the ownership?
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Anonymous Coward, 23 Oct 2009 @ 7:21am

Re:
When has the US forced ISPs to block websites? Show your work, or it didn't happen.
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Michial Thompson, 23 Oct 2009 @ 8:29am

Ownership/us blocks sites
First off the US did not force ISP's, but New York AG basically did by threatening:

http://www.nytimes.com/2008/06/10/nyregion/10internet.html

As for ownership, there is a difference between a knive and a company. The knife does not have a registered owner, or a person assigned to be responsible for the actions of it.

A company on the other hand is registered with the state, and feds as being a company, and the CEO/President is assigned as the responsible party for that companies actions.

It's apples and oranges to compare a company to a knife.
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Lance, 23 Oct 2009 @ 8:45am

Re: Re: IANAL - But doesn't...
It's important to remember that this case is in a different country with different legal rules. Whioel they may share the "innocent until proven guilty" approach in criminal matters, this is clearly civil matter. The burden of proof is often on the defendant in civil matters in this country. So it's not really unfair. When you look at it, who is in a better position to show ownership? TPB or the plaintiff?
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Anonymous Coward, 23 Oct 2009 @ 9:01am

Re: Re: Burden of proof
Wait...

So if you bought a knife, have the receipt, and I can trace the purchase of that knife back to you...

If that knife becomes the weapon used in a murder, the burden of proof is now on you to prove that you didn't use it to kill someone?

Or am I still missing steps here.
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Anonymous Coward, 23 Oct 2009 @ 9:03am

Re:
IF you have nothing to hide why are you posting as an Anonymous Coward?

"Nothing to hide" argument is such a ridiculous fallacy that it's not even worth considering. You can have absolutely no reason to hide information, but that doesn't mean you have any reason to reveal information.
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Anonymous Coward, 23 Oct 2009 @ 9:05am

Re: Ownership/us blocks sites
"A company on the other hand is registered with the state, and feds as being a company, and the CEO/President is assigned as the responsible party for that companies actions."

And the evidence that the accused own the site has been shown to be falsified.

Your point goes both ways. If you cannot show that the registered owners are in fact the people you are suing...why are you assigning responsibility to them?
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TheStupidOne, 23 Oct 2009 @ 9:55am

Re: Re: Re: IANAL - But doesn't...
But didn't another court already find that the founders did not own TPB? Shouldn't that absolve them of any responsibility?

It would be like suing your neighbor for parking his car in your lawn but then finding out it isn't his car and then continuing to sue him because you don't know who else to sue.
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Arnoud Engelfriet, 23 Oct 2009 @ 11:42am

Keep it real (honest)
To all

The Court of Amsterdam has received a letter from Reservella, the owner of the website ThePiratebay.org according to the founders.

In it Reservella makes clear that Reservella does not own the site. This contradicts statements made by Piratebay founder Peter Sunde. The result was that the judge in Amsterdam did not believe the founders of The Pirate Bay anymore and now they have lost this particular battle.

I am an IT lawyer and involved in cases such as BREIN vs FTD. I call on all file sharers to resist to those forces that are trying to impose restrictions on file sharing services.

However, I also want to urge everybody to play this game fairly, otherwise the damage to our community will be even worse.

Feel free to contact me if you have any questions.

Regards,

A. Engelfriet
The Netherlands
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Lance W, 23 Oct 2009 @ 12:22pm

The Knife analogy is a straw-man.

I also disagree that the Pirate Bay is nothing more than a search engine. If all they were doing was indexing results for torrent files on websites not their own, you have an search engine.

What differentiates the Pirate Bay is that they host the .torrent files which are used for the unauthorized distribution of copyrighted materials. This directly facilities copyright infringement.

As long as the burden is on BREIN and they can provide evidence that the .torrent file is copyrighted material there is no real injustice here.

File sharing copyrighted material is illegal whether you agree with it or not. If you're in the business of providing a service which is often used for illegal purposes expect the law to be enforced upon you.
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Anonymous Coward, 23 Oct 2009 @ 12:42pm

Re: Re:
When has the US forced ISPs to block websites? Show your work, or it didn't happen.

He asked a question. All you did was answer a question with a question.
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Anonymous Coward, 23 Oct 2009 @ 12:46pm

Re: Legal responsability
The decision also contains another interesting thing. The TPB guys argued that they are no longer responsible for the site, but the judge argued that unless they can show who is they still are.

Seems like "guilty until proven innocent" to me. It must suck to be Dutch.
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Anonymous Coward, 23 Oct 2009 @ 12:55pm

Re: Re: Re: IANAL - But doesn't...
When you look at it, who is in a better position to show ownership? TPB or the plaintiff?

The plaintiff. The burden should be on the plaintiff to show that they are suing the right person. Otherwise any victim of an unsolved crime could simply pick someone to sue and require the defendant to "prove" that that they aren't the guilty party by proving who actually is. It is very difficult to prove a negative.

For example, say I come home and find one of the windows on my house broken. I just pick one of my neighbors to sue for damages and when they claim it wasn't them, I just say "Oh yeah? Well who was it then? Prove it!".
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Anonymous Coward, 23 Oct 2009 @ 1:04pm

Re: Not really any different that would happen here in the US
The founders of TPB are/were the legitimate owners at one time, they created the site, they filled out all the paperwork, and by doing so they accepted responsibility.

It is my understanding that at least some of those the Dutch are trying to call "owners" never were. They were simply system admins. I would like to know the source of your information that shows that they ever were the legal owners. You know, the papers of incorporation, business registration or something like that. Again, it was my understand that such documents did not exist.
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Anonymous Coward, 23 Oct 2009 @ 1:11pm

Re: Keep it real (honest)
In it Reservella makes clear that Reservella does not own the site.

But can they prove it? If not, then by Dutch standards aren't they just as much the owners as Fredrik, Gottfrid and Peter? I mean, if you have to be able to *prove* that you don't own something in order to not own it then it would seem so.
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Anonymous Coward, 23 Oct 2009 @ 1:15pm

Re:
If you're in the business of providing a service which is often used for illegal purposes expect the law to be enforced upon you.

How many automobiles do you think never get used for illegal purposes?
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Anonymous Coward, 23 Oct 2009 @ 1:26pm

Copyrighted Files
According to the linked TorrentFreak article "In addition to removing the torrents the defendants have to block Dutch users from accessing certain parts of the site (across all their domains) where users can download copyrighted files."

If by "copyrighted" they mean "copyright infringing" then that part of the ruling shouldn't have much effect because, as I understand it, TPB doesn't offer infringing files for download.

However, if they really mean "copyrighted" then that would mean just about everything, infringing or not. Even downloading, say, Linux would violate the order in that case. Is it to become illegal to download Linux in Holland?
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Anonymous Coward, 23 Oct 2009 @ 1:27pm

Re: Re:
How many automobiles do you think never get used for illegal purposes?

Never. Cars don't sell drugs, they don't kill people, they don't rob banks. The people who drive them might.

Sort of different, no?

Nobody is telling torrents to stop being torrents, they are only telling the guys making the illegal stuff available to stop making it available.
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Anonymous Coward, 23 Oct 2009 @ 2:35pm

Re: Re: Re:
Never. Cars don't sell drugs, they don't kill people, they don't rob banks. The people who drive them might.

Reading comprehension is apparently not a strong point with you. The question wasn't about how many cars commit crimes but rather about how many get *used* for illegal purposes.

Sort of different, no?

I would ask you the same thing, but considering your demonstrated comprehension skills, I doubt that you'd understand.

Nobody is telling torrents to stop being torrents...

I hope not, because you really can't tell a torrent file much of anything. They're simply files, not sentient beings. Your apparent belief otherwise simply astounds me.
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Anonymous Coward, 23 Oct 2009 @ 7:09pm

Re:
Torrent files are not copyrighted material.
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Anonymous Coward, 24 Oct 2009 @ 12:02pm

Re: Re:
Torrent files are not copyrighted material.

Actually, in the 164 countries that are party to the Berne Convention, works are automatically copyrighted when they are created. This would indicate that whoever created the actual torrent file automatically owned the copyright on it as soon as they created it. This also means that claiming copyright infringement of a torrent file that you didn't actually create, such as a movie company might do, is probably copyfraud.

Now, just because a work, even a torrent file, is copyrighted that does not mean that it is an infringement to copy or distribute it. It is only infringement if done without permission.

The question arises though as to whether or not torrent files contain enough of a creative element to be covered by copyright. The answer to that may vary from country to country.
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Anonymous Coward, 26 Oct 2009 @ 12:51am

Actually, in the 164 countries that are party to the Berne Convention, works are automatically copyrighted when they are created. This would indicate that whoever created the actual torrent file automatically owned the copyright on it as soon as they created it. This also means that claiming copyright infringement of a torrent file that you didn't actually create, such as a movie company might do, is probably copyfraud.

...

You're an idiot.
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